For Opponents of Health Care Law, No Easy Road to Repeal

The Affordable Care Act atop a cabinet in an office of Senator Mitch McConnell, a Republican who has vowed to repeal it.Credit
Stephen Crowley/The New York Times

WASHINGTON — Minutes after the Supreme Court ruled to uphold most of the health care law, Congressional Republicans vowed to use every ounce of their legislative muscle to repeal it on their own.

The court’s ruling that Congress can use its taxing power to assess a penalty fee on Americans who ignore the individual insurance mandate certainly opens a gateway for anti-tax Republicans to attack the law. Should they win the White House and gain even a narrow majority in the Senate, Republicans would be able to use the same procedural approach Democrats took to get the health care law over the finish line two years ago to undo the taxes and federal subsidies that are at the core of the law.

But attacking the law by stripping away its layers of taxes, fees and subsidies is not the same as dismantling it. Undoing the major benefits and policies of the law — which include medical coverage for children up to age 26, protections for people with pre-existing conditions and the end of annual and lifetime caps on certain forms of coverage — would require the acquiescence of Senate Democrats, which is highly unlikely.

In essence, the Republicans could not muster sufficient votes by themselves to undo most of the regulations and benefits of the law, but could for the parts that pay for them.

“You can’t get everywhere with reconciliation,” said Senator Rob Portman, Republican of Ohio, referring to the Congressional process that Democrats used, which allows certain budget measures to pass with 51 votes instead of the 60 that would be required to block a filibuster vote on a full repeal. “You will need to use other procedures,” he said. He added later: “We may get a majority. But we will need to work with the other side.”

While some Republicans fantasize about a bipartisan solution to undoing the elements of the law, Representative Tom Price of Georgia, a physician who is the Republican leadership’s point man on health care, said Friday that a health and human services secretary under a Romney administration would dismantle other parts of the law through fiat.

That would no doubt attract lawsuits and might leave haters of the law unsatisfied.

For their part, Democrats have largely dismissed the biggest blow dealt to the law by the Supreme Court, which said the federal government could not require states to expand their Medicaid programs. Supporters of the law argue that the federal government offers too rich a cash incentive for any state to actually pass it up.

But while Democrats remain publicly confident that states will still choose to take the federal matching funds and expand Medicaid, Republican governors who have made undoing the law one of their main goals will be hard pressed to take up that optional expansion, especially since the federal dollars meant to help them would decrease over time.

Either way, whether Republicans lawmakers pull apart some of the law on their own, or if a large number of states opt out of expanding Medicaid, it will spell trouble for the health care industry. It is counting on the expansion of the market through the individual mandate, fees and the newly insured to cover the cost of greater benefits and regulations.

“It’s problematic to only take down the pieces with budgetary impact and leave the market reforms,” said Catherine Finley, a health care specialist at Thorn Run Partners, a Washington lobbying and government relations firm. “Doing so would seriously disrupt the functioning of the market.”

Both Republicans and Democrats agree in theory that part of the law should be changed, and President Obama has suggested he is open to improvements.

But bipartisanship around health care seems unlikely, no matter who runs Washington.

The central difficulty is the seemingly irreconcilable differences between the goal of most Democrats, which is to expand health care coverage to as many Americans as possible, and that of Republicans, which is to push down government spending on health care. With costs rising sharply every year, those basic conflicts will remain, and policy solutions inevitably will require a bias toward one of those goals.

Further, the partisan bitterness that began long before the Affordable Care Act was even a notion has only deepened during two years of divided government.

For example, in 2009 Republicans who supported the expansion of the Children’s Health Insurance Program felt betrayed when Democrats, taking their lead from the new Obama administration, unilaterally dropped several important features that Republicans had managed to win in an earlier bill at some political risk. Democrats opted for a more partisan bill that covered various groups that Republicans had resisted.

“I’m a little bitter,” said Senator Orrin G. Hatch of Utah. “I worked my butt off” on the measure, he said, only to end up voting against it. “It set the tone.”

Democrats feel equally angry that, in spite of packing the health care bill with many ideas, including the individual mandate, that originated with Republicans years ago, they could get no Republican cooperation in the end.

Many Republicans also say that they would like to preserve many aspects of the law, including the provisions for dependent coverage for adult children and for lifting annual and lifetime spending caps.

However, “it might be difficult for the Romney administration to come back and say, ‘Oh we really like some parts of A.C.A., we are not going to repeal them,’ ” said James Brasfield, a professor of management and political science at Webster University in St. Louis.

It is possible that governors and legislatures may do some of the Congressional Republicans’s work for them by opting out of the Medicaid expansion. But that expansion was going to put 16 million to 21 million additional people into the system.

Insurance companies had or were developing plans to cover these new Medicaid enrollees, also anticipating millions of new customers who were going to buy insurance through new federally subsidized purchasing exchanges. That would be endangered if Republicans legislate away the subsidies, and possibly harm the party’s friendly relationship with the companies.

“That population presents great opportunities for health plans,” Ms. Finley said. “Now we have to see how the states play this out. If they opt out of the expansion, it certainly would decrease the availability of new markets.”

A version of this article appears in print on June 30, 2012, on page A1 of the New York edition with the headline: Politics and Popular Provisions Make Health Law Hard to Erase. Order Reprints|Today's Paper|Subscribe